Tuesday, September 20, 2011

I am on the Birmingham Bar Association committee for their publication, the Birmingham Bar Bulletin. As a committee member, I was asked to write an article, which was published in the fall issue of the Bulletin. This may be my first real published work, though it did not require submission or competition. It did require effort, however, which I took seriously. I wanted to write an engaging article, and I am very pleased with how it turned out--just in time for football season! I uploaded a pdf for my Facebook friends, but this may be a little easier to read. It is not just for lawyers, so enjoy!

The Sports Fanatic’s Guide to Motions to Continue

For those of us who live and breathe college football, few things stand in the way of our fandom.Work, for most of us, is a passion, but a passion tempered by other passions.Like football and...well, FOOTBALL!

So what happens when your team makes it to that national championship game but you have a trial scheduled?You might even have expectations that this will be one of those magical seasons capped off with a trip to New Orleans.You may find yourself in the position where you want to move to continue the trial, but you don’t want to invoke the wrath of your judge and invite public scrutiny.Certainly, it would behoove you to get up-to-speed on what other attorneys have done to successfully get their motions to continue granted when faced with a similar dilemma.Let this be your guide.

The first sports fanatic to make local headlines for a motion to continue was Bessemer attorney Jon Terry.Alabama was set to play Texas in the 2009 BCS national championship game on January 7, 2010, but Terry was scheduled for trial before Judge Dan King for the very same date.Of course, Terry did what any good lawyer in his situation would do.He moved for a continuance.THE continuance.

I call it THE continuance, because not long after it was filed, Terry’s motion made national headlines.Within a day, THE continuance was picked up by the Atlanta-based legal blog, Abovethelaw, where readers discussed the merits of SEC football, and within hours, nationally-read Deadspin grabbed the story and posted opposing counsel’s response in opposition.The Birmingham News ran with the story too, and before he knew it, Jon Terry, along with his fellow defense attorneys were in the spotlight for having had the audacity to ask the Court--with a touch of levity--for the trial to be continued.

In his brief, Terry, eloquently explained that “such an event only comes infrequently during a person’s lifetime and is an achievement of such a magnitude that all involved in this litigation should want everyone to fully participate in this achievement.”Such levity, as we will see, is often well-received, though perhaps the most important thing here was that Terry was honest about his reason for seeking the continuance.

The Honorable Scott Vowell commended Terry on his bold request.According to the Birmingham News, Judge Vowell commented, “There’s been some motions for continuances and I’ve suspected what the real reason was, but this is the first one I’ve seen that was this honest and candid about the reason.”

But humor helps too.Abovethelaw characterized the plaintiff’s response in opposition as “lucid--and utterly humorless.”And it was the opposition who was overruled, despite the fact that the presiding judge was an avid Auburn fan.Judge King explained that he was inclined to grant the motion because if he didn't, “they'd say, ‘He just didn't grant it because he's an Auburn fellow.’”But perhaps he was compelled by Terry’s prescient argument that someday fans of that “other great team in this State” might “one day find themselves in the same position that the Defendant attorneys are in . . .”

Indeed, the very next year, Auburn faced off against Oregon for its own shot at the BCS National Championship.This time, two local attorneys made headlines with their motions to continue--Birmingham lawyers Michael Mulvaney and LaBella Alvis.Unlike Judge King, the presiding judges were fans of the same teams as the moving parties.In fact, the judge presiding over the trial that conflicted with Alvis’ BCS travel plans was none other than the Honorable Scott Vowell.

Perhaps Alvis was emboldened by Judge Vowell’s comments regarding Terry’s motion the previous year, as she took the sports fanatic’s motion to continue to a new level by writing her entire brief in metered verse resembling that of ‘Twas the Night Before Christmas.She opened with, “ ‘Twas three weeks before Christmas/When all through the muck/Not a creature was stirring/Not even a Duck,” and she concluded, “So let me hear you exclaim as I walk out of sight/Go to Glendale counselor and have a great night!”

Rather than fight the motion, opposing counsel Patrick Lavette requested that Alvis sing Title Night/Championship Fight to the tune of Silent Night in open court should the motion be granted.Not surprisingly, the motion was granted, but not without further poetry.

Judge Vowell crafted a poetic order in favor of Alvis’ motion. “So defendant's motion is granted; the case will be reset/But counsel are cautioned that not on a bet/Will any further delay be made legal./And, in closing, by the way, WAR EAGLE!”It appears Lavette was wise not to oppose Alvis’ motion.

Not every sports fan may have Alvis’ penchant for poetry. Take heart!Mulvaney used a completely different tactic with grand success in his motion to continue.His strategy?Copious amounts of cuteness.In an attempt to convey his family’s high level of investment in the Auburn football program, Mulvaney attached two pictures of his three daughters to his motion to continue.The first was a recent picture; the second was a picture from seven years ago in which his three angel-faced girls were sporting Auburn jerseys and flag-football gear.Mulvaney pleaded with the Court that this was a “once in a life-time opportunity” to attend the National Championship Game.

His judge, the Honorable Kristi DuBose, was not unmoved.She granted the motion, and by way of explanation, attached as an exhibit a picture of her own daughter as a toddler in Auburn cheerleading garb sitting next to a stuffed Aubie tiger.According to Mulvaney, he did not know that Judge DuBose was an Auburn fan before filing the motion.Fortuitous as it was, I cannot imagine any judge would be so stoic as to deny such an impassioned--and adorable--plea.

While the rest of the country might chalk up the orders granting motions to continue to attend football games as proof of the pervasiveness of football culture in Alabama, Alabama is not alone in having made these sorts of headlines.

Stephen Babcock, an LSU fan, might be credited as the first college football fan to move to continue a trial so he could attend the BCS championship game.His tactic?Humor and persuasive authority.He moved to continue his January 7, 2008 trial date based on the Louisiana Civil Code of Procedure, which states, “A continuance may be granted in any case if there is good ground therfor.”Per Babcock, “All counsel to this matter unequivocally agree that the presence of LSU in the aforementioned contest of pigskin skill unquestionably constitutes good grounds therefore.”Babcock even cited an Indiana case stating the importance of college football.Rensing v. Indiana State University Bd. Of Trustees, 437 N.E.2d 78 (Ind. App. 1982).

Babcock’s motion was granted, and not without precedent.In January of the previous year, the New Orleans Saints made their first NFC championship appearance in franchise history.Louisiana attorney James Garner and his fellow defense attorneys cited concern that there would not be a “full” jury pool if trial went forward the next day.The court granted a two-day continuance.

Then later, in 2010, when the Saints made their first-ever Super Bowl appearance, New Orleans Civil District Court Judge Michael Bagneris took “judicial notice that Saintsmania permeates the City of New Orleans.”He continued the trial for an entire week before the Super Bowl, recognizing that “several attorneys involved in this litigation and Court personnel plan on traveling to the promise land--the Superbowl in Miami, Florida” and that “this pilgrimage enhances the chances of the Who Dat Nation to acquire the long sought after Holy Grail--the Vince Lombardi Trophy.”Perhaps the order was the result of numerous motions to continue, or perhaps Judge Bagneris simply recognized the inevitable city-wide party that was to come.

If you are a fan of some other team of some sport other than football, don’t lose heart.Motions to continue can work for you too.Consider, for instance, Darrell Cook, a self-professed “Texas Rangers Baseball Club” fan who, despite his team’s pitiful history, found itself making a postseason run.In addition to humor, Cook opted to go push the pity-envelope as he described having a “Sports Cry” in the stands when the Rangers beat “the Evil Empire” to earn their spot in the World Series.Again, the presiding judge was moved, and granted his motion to continue.

So there you have it, the sports fanatic’s guide to motions to continue:honesty, poetry, cuteness, precedence, and pity.Take your pick or perhaps use some combination of these.But above all, do not forget your sense of humor.

Here’s to hoping your team puts you in this enviable dilemma this year.